Category Archives: Constructive Discharge

Pennsylvania School District Employee Forced to Resign has Age & Disability Discrimination Claims

When an employee “voluntary resigns”, an employee may still prevail in an employment discrimination claim based on age, disability, or other protected criteria. Some employers who have already made a decision to terminate an employee use a tactic where the employer calls an employee to a meeting and the employer states that we are going to terminate if you do not immediately resign. In such instances, when the underlying reason for the termination is protected by the law, courts can find that the “voluntary resignation” is a constructive discharge, which is in effect the same as the termination of employment. In Sorlini v. Wissahickon School District (E., D. Pa. no. 16-1837) (April 5, 2017) (Tucker, C. J.), the court denied the employer’s Motion to Dismiss, found that there was evidence to support a constructive discharge of employment and held that the employee could proceed with his age and disability discrimination claims.

In Sorlini, the employee was a 58-year-old building supervisor for a school district who suffered from heart and knee problems that affected his ability to walk or stand without pain for extended periods of time, which culminated in a heart attack and two knee surgeries. The employee took a significant amount of time off from work. The employee was terminated within 2-3 months after another employee informed him that she overheard the school principal, and a supervisor, discussing the need to terminate his employment due to his illness and numerous sick leaves. The principal met with the employee and expressed concern that he had allowed another employee’s boyfriend on school premises without authorization; the employee denied that he had any knowledge of the boyfriend being present. Prior to the principal’s meeting, the employee had never had his work performance questioned and he had no disciplinary history. The day after the principal’s meeting, the employee was called to a meeting with the employer’s human resources director, chief financial officer, and his supervisor and informed that if he did not resign immediately, he would be terminated for allowing the co-worker’s boyfriend on school premises and that he would not be eligible for disability pension benefits if he was terminated. The employee then signed a resignation letter during the meeting under the threat of immediate termination. The employee was replaced by an employee who was less than 40 years of age. The employee also alleged that there was a liberal practice of allowing individuals who were not school employees on school premises and two custodians, a secretary, and a teacher allowed individuals who were not school employees on the school premises, yet they were not disciplined.

In Sorlini, the employee filed a lawsuit against the school district alleging age discrimination in violation of the Age Discrimination in Employment (ADEA), disability discrimination in violate of the Americans with Disabilities Act (ADA) and violations of the Pennsylvania Human Relations Act (PHRA). The employee, alleged that the employer constructively discharged him because of his age and disabilities, and subsequently replaced him with a younger employee.

An employer’s Motion to Dismiss will be denied if the employee alleges a prima facie case of discrimination. To establish a prima facie case of age discrimination an employee must show: (1) the employee is older than 40; (2) the employee was qualified for the position; (3) the employee suffered an adverse employment action; and (4) the employee was replaced by a sufficiently younger person or some other evidence to support the inference of age discrimination.

In Sorlini, the employee was 58 years old, he was qualified for the job he performed for 7 years and he was subsequently replaced by a substantially younger person. Thus, the question centered around whether he suffered an adverse employment action despite the fact that he voluntarily resigned. When an employee voluntarily resigns, an adverse employment action exists if the employee was constructively discharged. A constructive discharge is established when a reasonable person in the employee’s position would have had no choice but to resign. When considering whether an employee was constructively discharged, courts look for indicia of coercion, such as threats of termination, suggestions to resign or retire, demotions or reductions in pay or benefits, alterations in job responsibilities, unfavorable performance evaluations, and false accusations of stealing or misconduct.

In Sorlini, the court found that the employee was constructively discharged because he alleged that he was subject to false accusations of misconduct and threats of discharge, he was falsely accused of letting unauthorized personnel on school premises and then told that he would be terminated for his misconduct if he did not resign. The court found that given the time constraint, the employee did not have the opportunity for due deliberation before making the decision to sign a resignation letter, thus, there was evidence that would raise a reasonable expectation of constructive discharge and the court found that the employee had sufficiently raised a claim of age discrimination to survive the motion to dismiss.

The ADA prohibits employers from discriminating against an individual with a disability in regard to termination or the terms, conditions, and privileges of employment. To establish a prima facie case under the ADA, an employee must show that he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations and the employ suffered an otherwise adverse employment decision as a result of discrimination based on a disability. An employee may be qualified to perform the essential functions of a job based on job experience. A discriminatory adverse employment decision due to a disability may be established by a constructive discharge.

In Sorlini, the court found that the employee qualified for protection under the ADA as he alleged several musculoskeletal and cardiovascular physical impairments that limit major life activities, including heart and knee problems that affected his prolonged ability to walk or stand without pain. The court also held that the employee was qualified for the position of bundling supervisor in that he had performed the job for 7 years. Further, as with the age discrimination claim, the court found that there was evidence that could support a constructive discharge of employment which raises the reasonable expectation that Plaintiff suffered a discriminatory adverse employment action due to his disability

Andrew Abramson is a Pennsylvania employment discrimination attorney who represents employees who have been discriminated against based on their age, a disability and other legally protected criteria. For more information on age discrimination see; for more information on disability discrimination see our website at

Leave a comment

Filed under Age Discrimination, Americans with Disabilities Act - Disability Discrimination, Constructive Discharge, Disability Discrimination, Montgomery County Employment Discrimination, Philadelphia Employment Law Attorney

Disability Discrimination: Refusal to Reasonably Accommodate Disability by Denying Request to Work From Home May Justify Resignation

When an employee with a disability has a medically documented need to work out of the office, which could be reasonably accommodated by the employer and the employer refuses to do so, there may be instances where it is justifiable for the employee to resign. In McIntyre v. Archuleta, (W.D. Pa. July 29, 2015), the employee suffered from three primary medical conditions: Crohn’s disease, post-shingles neuralgia, and cancer and she requested her disability be accommodated by allowing her to work from home because her travel time to work caused her to be exhausted and her performance suffered. The employer denied the accommodation request in part, because it alleged that the employee’s work performance was poor, and “only employees with favorable performance evaluations” were eligible to work from home. Even though the ADA requires that an employer engage in an interactive process when an employee makes an accommodation requests, the employer did not engage in any interactive process with the employee to attempt to help the employee identify alternative accommodations. The employee then resigned her employment and retired. The employee alleged her performance problems were in large part caused by her fatigue that was, in turn, the result of her long commute to work and she contended that with an accommodation she would not have had those same problems. The court denied the defendant employer’s motion for summary judgment, holding that it is possible a fact finder could conclude that the Defendant’s refusal to accommodate her–and its failure to engage in the required interactive process with her–was a substantial part of the reason she was forced to resign. Thus, a fact finder could also plausibly conclude that, without an accommodation…the Defendant permitted conditions so unpleasant or difficult that a reasonable person would have felt compelled to resign.

For more information on the Americans with Disabilities Act, disability Discrimination, age discrimination and Abramson Employment Law, see,

Leave a comment

Filed under Americans with Disabilities Act - Disability Discrimination, Constructive Discharge, Employment Law

Retaliation: Employee Who Files Discrimination Claims, is Denied Promotion & Suffers Adverse Actions has Retaliation Claims

When an employee files a good faith employment discrimination claim and then experiences adverse actions at the workplace, the employee has a claim for retaliation. For instance, in Komis v. Perez, 2014 U.S. Dist. LEXIS 82065(E. D. Pa. June 16, 2014)(Rice, M. J.), the Plaintiff, a former employee of the Occupational Safety and Health Administration (“OSHA”), filed an action for retaliation contending that she was retaliated against when OSHA management failed to hire her as an Assistant Regional Administrator and she was subjected to a retaliatory hostile work environment due to a myriad actions, resulting in her constructive discharge. The Court held that the Plaintiff employee presented sufficient evidence to present questions of material fact related to her retaliation claims and denied the employer’s motion for summary judgment, holding that the case will turn on who the jury believes in order to determine if Plaintiff was a disgruntled and poor-performing employee who failed to adjust to necessary changes; or whether she was an employee victimized by vengeful management angered by her complaints of discrimination.

In order to establish a retaliatory failure to hire claim, a Plaintiff employee must first establish a prima facie case of retaliation under Title VII to show:(1) the employee engaged in activity protected by Title VII; (2) the employer took a materially adverse employment action; and (3) there was a causal connection between participation in the protected activity and the adverse employment action. If the employee establishes a prima facie case, the burden shifts to the employer to demonstrate a legitimate, non-retaliatory reason for the adverse employment action. Then the burden shifts back to the employee to show that the employer’s explanation is false or pretextual and retaliation was the real reason for the adverse employment action.

In Komis, the employee established a prima facie case (i.e. she filed multiple good faith claims of discrimination based on a criteria protected by the law such as race, age national origin-which are not specified in the opinion). The employer claimed that the candidate hired for what would have been a promotion was superior to the Plaintiff because the employer wanted a candidate with a fresh, outside perspective to run the operations claiming there was concern that there was disagreement, hostility, and personality conflicts among the existing employees. The Plaintiff employee then asserted that the proffered reason was pretextual because she was more qualified based on the vacancy announcement, which demanded an understanding of technical safety, occupational health matters and the successful candidate only had legal experience with regard to those matters. The Court held that the Plaintiff employee presented sufficient evidence to raise a question of material fact concerning the credibility of the proffered non-retaliatory reason for not hiring the Plaintiff and viewing the evidence in the light most favorable to Plaintiff, a reasonable jury could conclude that the employer was using the unaddressed hostility within the office towards the employee who up until that time had good performance evaluations, as a pretext for excluding her from receiving the promotion because she had engaged in protected activity.

To establish a retaliatory hostile work environment/constructive discharge claim, an employee must show: (1) the employee was retaliated against because of protected activity; (2) a reasonable employee would have found the alleged retaliatory actions materially adverse; (3) the retaliatory conduct detrimentally affected the employee; (4) the conduct would have detrimentally affected a reasonable person in like circumstances; and (5) a basis for employer liability. In establishing a causal link between the alleged retaliatory conduct and protected activity, an employee can rely on a broad array of evidence, including signs of a retaliatory animus, temporal proximity between the protected activity and the alleged retaliatory action, inconsistencies in the employer’s articulated reasons for terminating the employee, and a pattern of antagonism in the intervening period. An employee must also show that the employer’s actions would have dissuaded an objectively reasonable person from making or supporting a complaint against the employer by showing more than trivial harm such as petty slights, minor annoyances, and simple lack of good manners which are not sufficient to deter a reasonable person from reporting misconduct. The significance of any given alleged act of retaliation often depends on the particular circumstances. To prove constructive discharge based on a hostile work environment, the employee must show that working conditions were so intolerable that an objectively reasonable person would have felt compelled to resign. Whether an employee was forced to resign may be based on several factors, including, whether the employee was threatened with discharge, encouraged to resign, demoted, subjected to reduced pay or benefits, involuntarily transferred to a less desirable position, subjected to altered job responsibilities, or given unsatisfactory job evaluations.

In Komis, the Court held that when the evidence of misconduct is viewed in favor of the plaintiff employee and considered cumulatively as part of a continuing course of retaliatory conduct, the following genuine disputes of material fact exist which could support a showing of causation and materially adverse actions: permanently removing the employee from certain previously assigned work, reassigning to a primarily clerical position, harsher discipline in comparison to other similarly situated employees, lower performance ratings that hindered the chances for promotion, denial of the opportunity to attend training courses, failing to properly investigate and resolve alleged misconduct against the plaintiff employee by other employees, denial of the opportunity to work from home or a different location when similar employees were permitted to do so, and management interference with assigned work. Consequently, the court denied summary judgment on the retaliatory hostile work environment /constructive discharge claim.

For more information on retaliation and Abramson Employment Law, see You can

Leave a comment

Filed under Constructive Discharge, Failure to Hire, Retaliation

FMLA and ADA: Employee Who Takes FMLA Leave, Does Not Return to Work and Retires Has Viable Claims under the FMLA and ADA

In some circumstances when an employer makes work conditions so intolerable, ultimately causing the employee to no longer work for the employer and retire, an employee may still have viable legal claims. In Pallatto v. Westmorland County Children’s Bureau, 2014 U.S. Dist. LEXIS 27008 (W. D. Pa. March 3, 2014), the Plaintiff employee was employed as a case worker for 13 years. The employee was disciplined on a number of occasions for use of sick leave when she informed her supervisors that she was suffering from migraines and sleep problems. Thereafter, the employee applied for leave under the Family Medical Leave Act (“FMLA”) and again informed her supervisors of her headaches and difficulty sleeping and the effect that each had on her ability to perform her job. Ultimately, the employee was diagnosed with lupus; she informed her immediate supervisor and provided a doctor’s note to the department administrator. Thereafter, the employee requested help from fellow caseworkers in completing her work and conducting visits, a common practice within the office. The employee’s managers questioned the legitimacy of the employee’s illness and made comments such as she was not really sick and she should find a job that she was able to perform. The employee was also repeatedly harassed about her use of sick time despite providing doctor’s notes. The employee was advised she would have to work later than the 4:00 p.m. time she previously ended work, even though the employee told supervisors that working past 4:00 p.m. prevented her from taking her medication. Eventually, the employee filed for indefinite leave under the FMLA; did not return to work and she eventually retired from her employment based on a disability.

In Pallatto, the employee filed claims against her former employer under the FMLA, and for disability discrimination under the ADA and the PHRA. The Court found that the employee set forth a prima facie claim for FMLA retaliation by demonstrating she was protected under the FMLA and she suffered a materially adverse employment action causally related to the exercise of FMLA rights because a reasonable jury could find that the numerous employment actions levied against her after she applied for FMLA leave were sufficient to create an overall scenario that would dissuade a reasonable worker from exercising FMLA rights, This evidence included the schedule alteration requiring the employee to meet with clients at times when she was unavailable; an expectation that she keep her case files updated by the day, while other caseworkers were given a month; prohibiting co-worker assistance in completing work even though this was a common practice within the workplace; and her immediate supervisors harassing her about missing work and telling her to quit and find a job she could perform. While the employer offered a legitimate nondiscriminatory reason for its action in that plaintiff was missing visits, making unannounced home visits when no one was present at the client’s home and falling behind with her dictation, the court found that the employee showed that these reasons could be pretextual because disciplinary and remedial measures aimed at the employee were not applied to others within the office. As such, the court concluded that the evidence sufficiently demonstrates weaknesses and inconsistencies in the employer’s proffered reasons for its actions.

The Court also found that the Plaintiff employee adduced sufficient evidence to create a genuine issue of material fact with respect to her claim for disability discrimination under the ADA and PHRA because a reasonable jury could find that the employee established an impairment through her FMLA application and her diagnosis of lupus which substantially affected major life activities such as sleeping and concentrating, as her condition affected her sleep and left her fatigued and unable to work. The court also found that the employee’s proposed accommodations, that fellow coworkers be allowed to help her complete her work and be allowed to see children in the morning so that she would not have to work past 4:00 p.m., were reasonable. The court also found that under the ADA, adverse employment decisions include the refusal to make reasonable accommodations for a plaintiff’s disabilities and there was sufficient evidence to support the contention that the employee asked for an accommodation and the employer did not make a good faith effort to assist her. Thus, the court found that because a reasonable jury could find that plaintiff was disabled and a qualified person under the ADA who requested and was denied a reasonable accommodation; and the employer had not identified legitimate reasons as to why plaintiff’s requested accommodations had to be rejected, the employer’s motion for summary judgment with respect to plaintiff’s ADA and PHRA discrimination claims must be denied.

In Pallatto, the court also found that the plaintiff employee produced sufficient evidence to move forward on her claim for hostile work environments because her job was made more difficult and frustrating through the actions of her supervisors, she was required to work a revised schedule that was known to be very difficult for her given her impairment and she also was subject to constant harassment about her illness.

For more information on the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA) and Abramson Employment Law see,

Leave a comment

Filed under Americans with Disabilities Act - Disability Discrimination, Constructive Discharge, Employment Law, FMLA

Sexual Harassment: Employer Liable for Ignoring Repeated Sexual Harassment Complaints by Employee

An employer which is presented with claims of repeated sexual harassment and fails to take action against the harassers exposes the employer to a significant sexual harassment claim. In Standen v. Gertrude Hawk Chocolates, Inc., 2014 U.S. Dist. LEXIS 20075 (M. D. Pa. February 19, 2014) (Munley, J.), the plaintiff, a female employee was employed at a candy factory. The sexual harassment became so severe that the employee took FMLA leave for and while out on FMLA leave, resigned from her position, alleging that prior to resigning for 6 years she had been the victim of sexual harassment, numerous unwelcome and unwanted physical touchings and was subjected to a severe and pervasive sexually hostile work environment by three male employees. The employee filed numerous complaints with her supervisors up to and including defendant’s Chief Executive Officer and also repeatedly registered verbal complaints of sexual harassment with the Human Resources Manager. The employee filed a sexual harassment hostile work environment claim pursuant to Title VII which as it relates to sex provides that it shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s sex.

Title VII prohibits sexual harassment that is sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. Hostile work environment claims require a plaintiff to establish five elements: (1) the discrimination was intentional and because of the plaintiff’s sex; (2) the discrimination against plaintiff was severe or pervasive; (3) the discrimination had a subjective detrimental effect on the plaintiff; (4) the discrimination was objectively detrimental; and (5) respondeat superior liability (which determines if the employer is liable for the actions of employees). To satisfy the intentional discrimination because of sex requirement, an employee must demonstrate that sex was a substantial factor in the alleged harassment and that if she were a male, she would not have been treated in the same manner. In Standen, the employee met this requirement by testifying that her co-workers subjected her to a barrage of sexually charged comments, innuendos, propositions and gestures including sexually graphic comments; grabbing the employee around her neck, choking her, and saying “I know you like it rough”; summoning the employee into an office and stating, “Hey! we got your Christmas present!” whereby a coworker held up a vibrating tool and thrust it towards Standen’s genitals; and routinely coming up from behind the employee to lean in and smell her in a sexual fashion while the coworker pushed his groin into her; and demanding the employee walk ahead to admire her physique while making sexually suggestive remarks pertaining to her buttocks.

To determine if harassment is severe and pervasive, the totality of the circumstances must be examined, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” In Standen, the Court found that these incidents occurring over a 6 year period involved similar conduct by the same individuals suggesting a persistent, ongoing pattern which a reasonable jury could conclude that the discrimination was severe or pervasive. While psychological harm is not required, effect on the employee’s psychological well-being is relevant. In Standen, the employee met this burden by testifying that she was actively treating for depression and anxiety, that she attempted to take her own life and showing that the atmosphere in defendant’s factory was that of a “boy’s club,” and the men in the shop were untouchable.

The final hostile work environment element is respondeat superior liability which requires evidence that the defendant knew or should have known of the harassment and failed to take prompt remedial action. Thus, if a plaintiff employee proves that management-level employees had actual or constructive knowledge about the existence of a sexually hostile environment and failed to take prompt and adequate remedial action, the employer will be liable. In Standen, the employee easily met this requirement by showing that she complained to management about the sexually harassing behavior.

Standen also shows that arguments by employers that employees wait too long to file sexual harassment claims that occur over a substantial period of time can be overcome by the continuing violation doctrine, which provides discriminatory acts that are not individually actionable may be aggregated to make out a hostile work environment claim if at least one act occurred within the requisite filing period (180 days under Pennsylvania law and 300 days under federal law) and that the harassment is more than the occurrence of isolated or sporadic acts of intentional discrimination; stated differently, a court must determine if the violations constitute the same type of discrimination and that at least one act falls within the applicable limitations period.

For more information on sexual harassment and Abramson Employment Law see

Leave a comment

Filed under Constructive Discharge, Hostile Work Environment, Sexual Harassment

Race Discrimination – Hostile Work Environment Claim Includes Evidence of Acts Outside 300 Day EEOC Charge Period

While it is always essential to make sure that a Charge of Discrimination is filed within 300 days of the discriminatory event in question under federal law and 180 days under Pennsylvania law, hostile work environment cases may include events outside the 300 day period. In Francis v. Atlas Machining & Welding, 2013 U.S. Dist. LEXIS 20691 (E. D. Pa. February 15, 2013)(Stengel, J.), an African-American welder filed race discrimination claims against his former employer, alleging a hostile work environment and the constructive discharge of his employment. The Plaintiff presented evidence of repeated racial slurs and 2 hangman’s nooses in the workplace, and ultimately, after three years of employment, resigned because he felt extremely depressed and suffered panic attacks as a consequence of the treatment he received at the workplace.

In Francis, the Defendants argued that much of the offensive conduct was inadmissible because it occurred more than 300 days prior to the filing of the Plaintiff’s EEOC charge. The Court noted that while generally in a Title VII claim, all discriminatory acts that are alleged to have occurred more than 300 days prior to the EEOC filing are time-barred, hostile work environment claims are different. The Court relied upon a U. S. Supreme Court case, Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002), quoting 42 U.S.C. § 2000e- 5(e)(1), and held that “A hostile work environment claim is composed of a series of separate acts that collectively constitute one unlawful employment practice.” Id. Consequently, the Court held it does not matter that some of the component acts of the hostile work environment fall outside the statutory time period, provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered.

In Francis, the Court denied Defendants’ Motion for Summary Judgment and found that the Plaintiff has viable claims for a racially hostile work environment for which both the employer and supervisory employees could be liable, as well as the constructive discharge of employment, and the case can proceed to trial.

For more information on race discrimination and Abramson Employment Law see

Leave a comment

Filed under Constructive Discharge, Hostile Work Environment, Race Discrimination